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Court orders new review of possible juror bias in Tsarnaev case; says he will spend the rest of his life in prison regardless, but might be spared execution

A federal appeals court in Boston concluded today that a lower-court judge needs to consider whether two jurors in the trial of convicted Marathon murderer Dzhokhar Tsarnaev might have been biased - which could lead to a new sentence in which Tsarnaev spends the rest of his life in prison, rather than being executed for what he and his brother did.

The re-examination of the jurors will only affect the "penalty phase" of his 2015 trial, but not the underling guilty verdicts on more than two dozen counts, the Court of Appeals for the First Circuit in Boston said in its ruling today. The court had earlier lifted Tsarnaev's death sentence, but the Supreme Court ruled in 2022 that he should die.

In its ruling today, the appeals court said the judge in Tsarnaev's trial should have spent more time probing whether two jurors might have had reasons to deny they had posted anything untoward about Tsarnaev or the trial on social media while jury selection was still going on:

When Tsarnaev presented the district court with plausible claims of juror bias, the court was obliged to investigate those claims. And we conclude that the district court's investigation fell short of what was constitutionally required. This conclusion on its own does not require vacatur of Tsarnaev's death sentence and a new penalty- phase proceeding. Rather, we remand this case to the district court to determine whether either juror should have been stricken for cause on account of bias. If and only if the district court's investigation reveals that either juror should have been stricken for cause on account of bias, Tsarnaev will be entitled to a new penalty-phase proceeding. And even then, we once again emphasize that the only question in any such proceeding will be whether Tsarnaev will face execution; regardless of the outcome, he will spend the rest of his life in prison.

The court rejected his lawyers' arguments that the trial should never have been held in the city where he and his brother set bombs that killed three and injured scores during the 2013 Boston Marathon and across the river from where the two murdered an MIT police officer in their escape attempt that ultimately ended with one brother running over the other before being discovered hiding in a boat in Watertown, saying pre-trial surveys had shown the Boston area had "several million people" who remained open to not simply demanding death for the remaining brother.

That same data also showed that public awareness of the case and attitudes concerning it in, for example, Western Massachusetts, or even New York City, were not materially different than they were in Boston.


Tsarnaev's contention that Boston jurors would view the bombings as an attack of Boston qua Boston overlooked the fact that, as he himself wrote, his intended victim was America; i.e., jurors in any venue in the United States could view the bombings as an attack on their polity.

At issue for the appeals court were two specific jurors:

After the district court provisionally qualified Jurors 138 and 286, but before the parties exercised their peremptory strikes, Tsarnaev's counsel discovered postings on those jurors' social media pages regarding the bombings and the district court proceedings. Tsarnaev's counsel moved to strike the jurors for cause. In the alternative, his counsel asked that the district court permit further questioning of the jurors in light of the discovery of their social media postings. The district court denied these requests. In so doing, it did not adequately explore Tsarnaev's claims of juror bias. We therefore remand to the district court to conduct such an investigation.

It turns out that Juror 138 had posted on Facebook he was going in for jury selection in the case, filled out a lengthy questionnaire on his views, was told in very clear terms not to discuss the case with anybody while he was under consideration and then discussed jury selection with his friends in that Facebook discussion. Some 18 days later, the judge questioned him on whether he used Facebook:

THE COURT: Do you comment on public affairs or anything like that?
[JUROR 138]: Yeah, I see what my friends are doing and comment on that.
THE COURT: Anybody commenting about this trial?
[JUROR 138]: No.

The justices concluded the judge should have probed the man's online activity more carefully for possible bias:

It is one thing to have friends who say how to decide a case. It is quite another to engage in communication about the case after being instructed not to do so, and then feel compelled to cover up those communications when asked point-blank by the court.

Juror 286, meanwhile, had tweeted and re-tweeted extensively on the day of the bombings and for several days and months after, posting the sort of things lots of Bostonians were tweeting - the pain and anguish, the joy at Tsarnaev's capture and, later, over Martin Richard's sister singing the national anthem at Fenway.

On January 5, 2015, Juror 286 showed up at the courthouse and completed her juror questionnaire. She disclosed that she used Facebook, Instagram, and Twitter. In response to the question asking "[i]f you have commented on this case in a letter to the editor, in an online comment or post, or on a radio talk show, please describe," she answered "don't believe I have."

The court continued:

The posts themselves are not particularly strong indicators of bias. Many of them were not Juror 286's own words but rather retweets of what others have said. And it would be natural for Juror 286 -- like many others whose city had been the location of such a horrific event as the marathon bombings -- to feel scared while the situation was developing, to stay abreast of the activities during the aftermath, and to share in a sense of community pride and resilience in the years following. Again, the critical issue here is not the posts themselves but instead the reason for their nondisclosure. If Juror 286 intentionally answered the question dishonestly, thinking that discovery of her posts referring to Tsarnaev as a "piece of garbage" and repeatedly invoking the "Boston Strong" spirit could disqualify her from serving as a juror, then that would be a powerful indicator of bias.

PDF icon Complete ruling298.43 KB


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Why give him the easy way out?

Bloodlust is temporary. Pain can be permanent.

The Richards family argued against the death penalty. I side with them.

May he be the Colorado Supermax's longest tenant.

PS - Is it too late to indict his sister in law for her role in all of this? She appeared to get off very easily.

Can we also see that the Waltham keystone cops who botched the "drug" murders on 9/11/11 by Tamerlane and Todashev be forced into being crossing guards on the Bourne Bridge in the winter?

Can we see that four FBI and MSP troopers who were "attacked" by Todashev down in Florida get ice floed?

The whole cover your arse thing by the Feds after that fact (not the BPD or MBTA PD) reeks badly. The same with the lack of any brains by the Waltham PD to connect 3 Jewish guys being killed and no drugs taken to a possible hate crime reeks just as bad.


If execution is the "easy way out", then why is Tsarnaev repeatedly appealing his sentence and trying to stay alive? Answer: he'd rather be alive in prison than dead.


What was his SIL's role in all this. By all accounts she was managing the household, child, and working 60-80 hour weeks while being beaten at any other time.

She's a victim, not a perp. For someone who complains a lot about bias, your's is showing in angle-cut plaid.


One of the reasons they argued against death penalty (quoted below from the piece that the dad wrote for the Globe's Op-Ed page) was what the appeals process would do:

We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.


As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours. The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.


It wastes so much money and years of time in appeals. It's a distraction from more pressing concerns of the court.

There's no benefit to killing him. The sooner he is forgotten in jail, the better for all of us. Maybe in 50 years when he's in his mid-70s some enterprising journalism student can do a podcast about the forgotten marathon bomber.


to reform the appeals process in general, not against the death penalty itself.


There are appeals that are part of the death penalty that wouldn't apply for anything else. As noted, his lifetime sentence and conviction is are not being questioned.

There's too much that can go wrong with the death penalty and absolutely no upside. It's not saving money and it's not preventing crime. It doesn't even bring closure to the victims.


Have you bothered to read case law?

Seriously - learn the reasons the appeals systems are the way that they are. See also: The Innocence Project.

Your idea of appeals reform is to declare the justice system to be infallible. LOL.

But you would never be falsely accused of a crime or railroaded by authorities, oh no. Nor anyone in your family. That would never happen to Roadman!


there are plenty of perfectly good arguments against the death penalty, such that it's inhumane, barbaric, too frequently ends the lives of innocent people in the emotional struggle to find "justice", etc.


Most people in MA oppose the death penalty, and by a solid margin, but to serve on the jury for this case you had to support it. This is obviously not a representative sample of “your peers.” He should not be killed. The state should not have the power to do that.


Not in the name of the people of a state that does not have the death penalty, not in any civilized country.

"From this day forward,” Justice Harry Blackmun announced in 1994, “I no longer shall tinker with the machinery of death.” Blackmun had voted to restore the death penalty and even to approve mandatory death sentences. But after 25 years, he said, “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed … the problems that were pursued down one hole with procedural rules and verbal formulas have come to the surface somewhere else, just as virulent and pernicious as they were in their original form.”



The best argument generally against capital punishment for murder is that guilt in the American justice system can be a very slippery thing.

In this case, guilt is so astonishingly clear that yes, it is truly beyond a shadow of a doubt. There has not been a guiltier man in a Boston court save perhaps ol' Whitey, who also deserved to hang.

I truly believe that most--arguably all--murderers deserve the death penalty. They have committed a crime of such infinitude--stealing another person's irreplaceable life--that nothing else is even faintly proportionate.

Because the American justice system often isn't, we settle for less because otherwise we'll end up with DAs telling innocent people "plead out now or the jury will give you the needle," and frankly that still happens every week with 50-year charges and 5-year plea bargains.

But none of that applies here. He did it, I heard the screams, a person I knew had a whole life stolen from them. Death is the closest thing we can give him to justice.


How does an official state murder constitute justice?

Even the family of a child who was killed didn't go there.


How does an official state murder constitute justice?

The answer to your hypothetical nonquestion is pretty obvious, even to you: the defendant committed a crime where the penalty is death.

It's not murder. If anything, call it suicide.


And he's going to rot in prison anyhow. Killing him does nothing.


There are two different questions here:

1. Is execution a just punishment for the crime of murder?

2. Is execution a just punishment for a randomly-selected person convicted of murder in an American court?

I do not favor prosecutors pursuing capital murder charges against every single defendant because we know the system gets it wrong often enough and because it would give prosecutors even more coercive power than they have today. So, it is appropriate for us to reserve it for cases where guilt is incandescently clear. This case is the textbook example.

As for whether it is just, I believe it is because it is proportional to the crime committed. Murder is unique because it is a crime from which the victim cannot in any way recover; if you believe that this little moment of sentience is all that we get, then taking that away from a person is an act of almost incomprehensible horror.

Retributive justice is one of the fundamental principles underlying systems of law across nearly every culture and civilization since time immemorial.

And if someone says, "life in a supermax is a fate worse than death," then you are simply substituting decades of psychological torture for a few minutes of state violence. I see that as squeamishness, not justice. We should all try to be honest about what the state does on our behalf, just as those of us who eat meat should see the inside of a slaughterhouse every so often.


Guilt is a binary, or a person can be more or less clearly guilty?